Civil Partnership Bill 2009: Committee Stage (Resumed)
This meeting has been convened for the purpose of resuming consideration by the committee of Committee Stage of the Civil Partnership Bill 2009. I welcome the Minister for Justice, Equality and Law Reform, Dermot Ahern, and his officials. Deputy Howlin is attending in the absence of Deputy Rabbitte.
Members should note that an additional list of amendments, dated 24 May 2010, has been circulated and that we will be referring to both lists during the meeting. A revised grouping list of amendments has also been circulated.
There is one new item of correspondence on the Bill, No. 241, which has been circulated to members. I propose we note the correspondence. Is that agreed? Agreed.
I move amendment No. 29a:
In page 75, paragraph (c), lines 41 and 42, to delete all words from and including “made” in line 41 down to and including “during” in line 42 and substitute the following:
"made by that civil partner to the other civil partner during".
This amendment corrects a drafting error. Section 128 deals with retrospective periodical payment orders made by the court. The intent of paragraph (c) is to allow a civil partner who is ordered to make retrospective payments to reduce these payments by the amount, if any, he or she has paid to the other civil partner prior to the making of the periodical payments order but after the institution of proceedings. Paragraph (c), as published, does not have this effect and the amendment is to remedy this error.
It might be preferable if I gave an example. In a situation where there are unhappy differences between two civil partners, they separate and institute dissolution proceedings, let us say A has very little money and B advances €2,000 prior to the institution of dissolution proceedings. When the grant of decree and ancillary orders are made, the person who advanced the €2,000 is ordered to make retrospective periodical payments totalling €7,000. However, because they have already paid the other person €2,000 prior to the institution of proceedings, section 128(c) will allow them to deduct that amount with the result that they will now owe the other person €5,000. The section, as published, would not have allowed a partner to properly deduct any amount paid prior to the commencement of dissolution proceedings.
I have no difficulty with the point made by the Minister. It is fair and I agree with it.
The amendment makes sense, especially in the way the Minister has explained it. I, therefore, support it.
A similar provision in contained in section 21(1)(c) of the Family Law (Divorce) Act 1996.
Amendment agreed to.
Section 128, as amended, agreed to.
Sections 129 to 134, inclusive, agreed to.
I move amendment No. 29b:
In page 79, subsection (3), line 12, to delete "has, with that intention, made" and substitute the following:
"has, with the intention referred to in subsection (2)(a), made”.
This is a technical amendment to clarify and avoid any doubt that the words "that intention", as referred to in subsection (3), have the intention of defeating the claim for relief, referred to in subsection (2) (a). Section 135 deals with reviewable dispositions which are transfers of wealth or property which, in the opinion of the court, are made in order to reduce the payments or property transfers that one civil partner might otherwise be ordered to make to the other in dissolution proceedings. A court may overturn dispositions which are effected with the intention of defeating a claim for relief such as a maintenance order or property adjustment order.
Amendment agreed to.
Section 135, as amended, agreed to.
Sections 136 to 145, inclusive, agreed to.
I move amendment No. 30:
In page 82, before section 146, to insert the following new section:
146.—(1) Section 5(4) of the Pensions Act 1990 (as amended by the Pensions (Amendment) Act 1996 and the Family Law (Divorce) Act 1996) applies and has effect in relation to sections 119 to 124 and 185 to 190 as it applies and has effect by virtue of section 47 of the Family Law (Divorce) Act 1996 in relation to section 17 of that Act, with the following modifications:
(a) a reference to section 12 of the Family Law Act 1995 or section 17 of the Family Law (Divorce) Act 1996 is to be construed as a reference to sections 119 to 124 and sections 185 to 190;
(b) the reference in paragraph (c) to the Family Law Act 1995 or the Family Law (Divorce) Act 1996 is to be construed as a reference to the Civil Partnership Act 2010;
(c) the references to subsections (1), (2), (3), (5), (6), (7), (8), (10) and (25) of section 12 of the Family Law Act 1995 and section 17 of the Family Law (Divorce) Act 1996 are to be construed as references to sections 119(1), (2) and (5), 121(1), (2), (3), (4), (5) and (7) and 124(2), or sections 185(1), (2) and (5), 187(1), (2), (3), (4), (5) and (7) and 190, as the case may
be, of the Civil Partnership Act 2010, respectively; and
(d) the reference to section 2 of the Family Law Act 1995 or the Family Law (Divorce) Act 1996 is to be construed as a reference to section 107 or185.
(2) Subsection 10(1)(cc) (as amended by section 5 of the Pensions (Amendment) Act 1996 and section 47(c) of the Family Law (Divorce) Act 1996) of the Pensions Act 1990, is amended by substituting “and on the provisions of the Family Law Act
1995, the Family Law (Divorce) Act 1996 and the Civil Partnership Act 2010, relating to pension schemes (within the meaning of section 2 of the Family Law Act 1995, section 2 of the Family Law (Divorce) Act 1996 and section 107 and 185 of the Civil Partnership Act 2010)” for “and on the provisions of the Family Law Act 1995, and the Family Law (Divorce) Act 1996, relating to pension schemes (within the meaning of section 2 of the Family Law Act 1995 and section 2 of the Family
Law (Divorce) Act 1996)".".
The Minister might give the explanation again because he proposes a different formulation of words in the new section which will replace the existing section 146.
Section 146 applies to Pensions Board guidelines for the making of pension adjustment orders in civil partnership proceedings. This mirrors the provisions in the Family Law (Divorce) Act 1996 enabling the Pensions Board to give guidance on pension adjustment orders and related matters. Since the pension adjustment orders contemplated in this Bill are similar to those provided under the Family Law Acts, the same provisions and guidelines are being applied.
This refers solely to pension arrangements.
Amendment put and declared carried.
Section 146 deleted.
Sections 147 to 168, inclusive, agreed to.
Question proposed: "That section 169 stand part of the Bill."
Before we move to Part 15, I ask the Minister to clarify two issues, the first of which relates to a query I raised at the start of Committee Stage regarding the implications in respect of immigration on foot of the Bill. At the time the intention was to look at the matter in the context of the current immigration Bill, but as a consequence of the planned changes to the Bill, is the Minister satisfied that the response he gave me on that occasion still stands?
I would appreciate clarification of the second issue because there seems to be some confusion about it. It is related to where civil partnership ceremonies can take place. My understanding of the rules and regulations, as they stand, relating to civil ceremonies under the 2004 Act is that where a premises is used exclusively for worship, civil ceremonies cannot take place but where activities other than worship take place and the facility is rented for other purposes, civil ceremonies can take place within it. Is that the strict interpretation adopted by the HSE? The issue has been raised, not so much as it affects Catholic churches, in which concerts and so forth may be held infrequently, but in respect of churches of other denominations. I am aware, for example, of a Church of Ireland building, half of which is used for services. Because of falling numbers, the other half is used as a local community centre for the church's community. It is also made available for other purposes. In those circumstances, if a person wished to try to make headlines at a future date, could the HSE be forced to register the premises as a facility in which such a ceremony could take place?
That issue was dealt with earlier. There is no compunction on any religious organisation to hold ceremonies in any of its premises. The matter is entirely one for the organisation concerned. There is nothing in the Bill that will force any organisation to hold such ceremonies.
Regarding immigration, civil partners will be dealt with in exactly the same way as ordinary citizens, or non-civil partners. They are treated in the same way as spouses.
The planned changes to the immigration Bill do not have any implications for the clarification the Minister provided at the start of the debate.
My point pertains to the notification of ceremonies and civil partnership arrangements to enable them to proceed on a legal basis. There is a perception abroad that the Bill, once it is signed into law, will make it mandatory for religious officers, namely, priests, vicars, ministers and so on, to perform these ceremonies and that if they do not do so, they can be penalised for same. It is important to clarify the matter.
The other big question relates to freedom of conscience, to those persons who do not want to participate in such ceremonies exercising their constitutional right not to participate. Is there an opt-out provision for them?
All of these issues were dealt with. It is 100% incorrect to say any person from a religious background will be forced by the Bill to participate in civil partnership ceremonies. I cannot put it more clearly than this.
Regarding an exemption for the conscientious objector, this cannot be done in the context of the Oireachtas passing legislation and allowing public servants to opt out on an à la carte basis as they themselves see fit. They are obliged under the law to implement the law and no registrar has given an indication to date about any problems regarding the issue of divorce since the passing of divorce legislation. No registrar has made an indication to us with regard to anything that has been suggested in this legislation.
If a registrar has a difficulty, I am sure the Ard-Chláraitheoir would be able to organise a substitution for a registrar who may have a difficulty. That has not arisen at any stage and there is no possibility of giving an exemption. If that was the way, it would affect the everyone in the public sector, particularly in our current multicultural society. There may well be people of all sorts of religions who are members of the public service — as gardaí, nurses and doctors — and who may have issues emanating from religious belief. They must, in effect, put those aside on the basis that they are employees of the public service and are dictated to with regard to operations in employment by Acts of the Oireachtas.
We can deduce from the Minister's comments that this Bill involves statutory officers only that are not religious and it does not involve religious people.
We have been having this debate since Second Stage and it is not really germane to this section. For that reason I will not prolong the discussion. It is of such importance that we should be clear on it and I fully endorse the Minister's comments. The only people who would have any obligation are servants of the State who are registrars. It would be amazing to exclude servants of the State from enacting laws determined by the Parliament of the State. We do not have nurses who happen to be Muslim refusing to serve breakfasts if they contain pork. We do not have Jehovah's Witnesses refusing to be involved in operations where there are blood transfusions.
People are obliged to deal with the norms of the State and it should apply to servants of the State. A minister could not perform these ceremonies because they are not registrars, and that should be clear. There is another point in terms of service providers on which we should be clear. Since the passing of equal status legislation in 1990, which is a long time ago, nobody can discriminate against an individual because of sexual orientation. Such discrimination has been unlawful since 1990 and the Bill does not dislodge, augment or change that status in any way as I understand it.
It is not as far back as 1990; the legislation is from 1998 and amended in 2004. I do not want to prolong the discussion but there are people who get a service from the public sector. People have a constitutional right to be treated equally when they come to a registrar, and some may see a potential breach of such rights if a registrar was allowed, under legislation, to opt out as he or she saw fit in the implementation of that legislation. The State would be open to a possible claim for damages by somebody such as a civil partner or a person involved in a divorce. If it was laid down in legislation that the registrar could opt in and out as he or she saw fit, those people could have a very good case in the view of the Attorney General, my officials and myself. They would be entitled to make a claim against the State because they would not have been treated equally in the eyes of the law.
We must consider this from the perspective that civil partnership is an entirely secular concept that does not affect marriage. The point Deputy Treacy is making is whether this legislation should allow an opt-out for a registrar on grounds of conscience. The civil registrar is an official of the State and I would see a difficulty if such a State official would be in a position to refuse to register a civil partnership. If that was tolerated under law, it could apply to divorced couples and couples of differing religious persuasions on the basis that the registrar's religious belief would be in some way offended.
I accept the Minister's points. It may at times be difficult to reconcile the freedom of religion with a right not be discriminated against. Our law cannot countenance any rights on the part of individuals to discriminate against others in society and we are long past that. For a registrar or a service provider to opt out and discriminate would be a non-compliance with the law and it could well be extended to cover pensions, tenancy rights, employment law and general equality law. Undoubtedly, laws would unravel. There would be conflict with our national law and the nine principles of non-discrimination in those relevant laws.
As the Minister has indicated, this would extend to providers of other services, such as doctors, bank officials, insurance brokers, landlords and shops. Our laws would unravel completely. Deputy Treacy would not accept the idea of a bank official having the option to refuse to open a joint bank account because it may be in some way offensive to the official's religious beliefs. I accept the Minister's comments and I hope the issue will be accepted by way of cross-party agreement.
I am quite satisfied from what the Minister has said that we are dealing with statutory public service officers and the Bill does not go outside the remit. The case being put to me was that this was going across the gamut of religious life and involved religious people who had a duty to perform their functions. I am grateful that the Minister has said on the record that we are only dealing with statutory officers.
Question put and agreed to.
I move amendment No. 31:
In page 86, subsection (1), line 15, to delete "and committed".
This relates to the definition of "cohabitant" and "qualified cohabitant". Section 170(1) has the definition as "For the purposes of this Part, a cohabitant is one of two adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship". We have received detailed representation from Women's Aid on the phrase "and committed", which might make it difficult for women, in particular, to take a case to prove commitment. The concern voiced by Women's Aid is that it would create a barrier for a woman seeking protective orders under the Domestic Violence Act, and it may be used by an abuser to prevent the concerns even being addressed. It may discourage women from applying for relief under the Domestic Violence Act. Deputy Flanagan and I propose to delete the words "and committed" in the definition.
I agree with Deputy Howlin's point and ask the Minister how one would measure commitment. I am unsure as to what objective test might apply when gauging a level of commitment or what threshold might be required to have an acceptable level of commitment to a relationship. This important section defines a cohabitant as being one of two adults "who live together as a couple in an intimate and committed relationship". "Intimate" might not necessarily mean sexual, but section 170 creates an implication that the relationship must at one stage have been sexual. In the absence of a deceased cohabitant, it would be difficult for a legal representative to contest a claim from a potentially qualifying cohabitant without information that would be particular to the deceased cohabitant in terms of commitment. How will commitment be measured in practical terms?
Am I right in saying that "intimate" is not defined in the Bill? I cannot see a definition. I am not sure that I agree with Deputy Flanagan to the effect that "intimate" implies sexual intimacy. Many people have intimate relationships that are not necessarily sexual.
I apologise. I misunderstood the Deputy. There is a strong argument for keeping the word "committed". The definition of "cohabitation" can be found in sections 170(1) and 170(2). It appears to be a joint definition.
The latter part deals with children, the duration of the relationship and money matters, but we could not tolerate a situation in which legislation would apply to uncommitted couples or couples that did not view themselves as being serious items, for want of a better phrase. People, particularly younger people, can have loose and uncommitted relationships over a period.
They would have been living together for five years.
"Committed" is another word for "serious" and is a good safeguard. We do not want every couple in a relationship to rush off to the courts to claim rights under this legislation. It is not unfair to include "committed" in the definition.
I concur because "committed" is an important word. Over our political careers, we have all encountered cases of decent, docile people, perhaps two sisters, a spinster and a widow, or two brothers, a bachelor and a widower, who are living together and may be beneficiaries of their family homes in an intestate situation. If one dies, the other is often under pressure to vacate the property that was the family home because his or her niece or nephew received some type of benefit through a testate position. Will the Bill protect the rights of the surviving sibling to remain in that property?
Yes. The purpose of Part 15 is to provide some protection to a financially dependent and vulnerable cohabitant, that is, a cohabitant at the end of a cohabiting relationship, through the cohabitants redress scheme, which applies to same sex and opposite sex couples. We are dealing with the possibility of a redress scheme for financially dependent people who have split up. Under it, a qualified cohabitant who is financially dependent on the other cohabitant may apply to court for a range of orders, including the property adjustment order outlined in section 172, the maintenance order outlined in section 173 and the pension adjustment order outlined in section 185.
In light of the potentially onerous obligation to support a former cohabitant under the redress scheme, it is necessary to define the scope of the scheme to couples in long-term and committed relationships. The term "committed relationship" was carefully considered to meet this objective while excluding relatively casual cohabiting relationships from the remit of the redress scheme. This was the point so well made by Deputy Mulcahy.
During my many discussions with my officials, we examined the terminology to be used. There is no definition of "intimate". Indeed, there is no definition of "committed". However, section 170(2) gives guidance to the court to determine in each case what criteria it should use in determining what is an intimate and committed relationship. The subsection states:
In determining whether or not 2 adults are cohabitants, the court shall take into account all the circumstances of the relationship and in particular shall have regard to the following:
(a) the duration of the relationship;
(b) the basis on which the couple live together;
(c) the degree of financial dependence of either adult on the other and any agreements in respect of their finances;
(d) the degree and nature of any financial arrangements between the adults including any joint purchase of an estate or interest in land or joint acquisition of personal property;
(e) whether there are one or more dependent children;
(f) whether one of the adults cares for and supports the children of the other; and
(g) the degree to which the adults present themselves to others as a couple.
We cannot use the term "living as husband and wife" as is used in family law legislation because the adults are not husband and wife. They could be same sex or opposite sex partners living together. Instead, we came up with the term "intimate and committed relationship". As Deputy Mulcahy correctly pointed out, leaving out "committed" would lead to a situation in which relatively casual relationships could be included in the definition, which is not the intention of the Bill. Rather, the Bill intends to provide a safety net for different types of couples in the event of a break-up. It will not provide redress as a right, but the right to go to court to seek redress, which is not currently available to such couples.
The issue of whether there is a sexual nature to the intimate part of the definition is particularly specified, as Deputy Mulcahy mentioned. Subsection (3) states: "For the avoidance of doubt a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer sexual in nature." People in a same sex or opposite sex relationship might no longer have a sexual relationship or might never have had a sexual relationship, but the adults must be committed to living with each other, etc.
Deputy Treacy raised the issue of siblings. Where siblings are living under the same roof, they are already protected by significant legislative provisions. The system of taxing both gifts and inheritance involving persons who are living together is governed by the Capital Acquisitions Tax Consolidation Act 2003. Section 86 grants exemption from gift and inheritance tax in respect of a dwelling house acquired by way of gift or inheritance from siblings, and a relief from inheritance tax for elderly brothers and sisters living together was introduced in the Finance Act 1991. This relief was further extended in the Finance Acts 1994 and 1998. The relief was abolished with the introduction of section 151 of the Finance Act 2000 which is broader in application and deals with the survivor of a same-sex or a cohabiting couple as well as siblings living together and other non-conjugal cohabitants. On other assets, section 86 of the 2003 Act gives certain thresholds under which siblings, regardless of whether they live together, are exempt, and these are significant exemptions.
Siblings living together have significant protection under existing legislation. I am advised that to provide access to this redress scheme would not be appropriate because the courts' power to make orders restricting or mandating the sale of property and division of proceeds or to make a pension adjustment order would be an undue interference with the parties' constitutional property rights. It would be inappropriate to require siblings, family members or friends to pay maintenance to each other simply because their relationship has broken down.
The courts' more general power to make orders would also constitute an unwarranted intrusion into the normal social and familial relationships that might be involved. If there are to be changes in that area, they should be dealt with in other legislation, not in the redress scheme dealing with same-sex and opposite sex couples who have an intimate and committed relationship as defined under this legislation. They are taken care of in other legislation with significant exemptions from the tax provisions in that respect.
I fully agree with the Minister on two fronts, his definition of the confines of this legislation and the requirement to have a high hurdle for this part of the Bill as it relates to cohabitation. We do not want people casually finding themselves with legal obligations that neither party assumed would befall them. As laid out in section 170(2), there are high hurdles that are right and proper.
My focus was on the Domestic Violence Act but the Minister did not respond to that. In amendment No. 203, the Minister proposes to delete the reference to the Domestic Violence Act. Would that meet the purpose of this amendment?
We are taking out all references to domestic violence, including these. We have been advised it would be preferable to deal with all domestic violence issues in the miscellaneous provisions Bill that is imminent. That is the advice of the Attorney General. We can come to that when we deal with it but it is along the lines suggested by the Deputies.
Just so that I understand, I can see that a later amendment proposes to delete section 203 but that would have the effect of negativing my requirement for this amendment and amendment No. 225 as well.
I will give a full explanation of our position on the next amendment.
I want to refer to Deputy Treacy's point because there is some validity in it. I accept what the Minister says that it might add an element of confusion to this legislation if the relief sought by Deputy Treacy was to be considered appropriate.
I would like a commitment from the Minister that he will look at the point made where there is, especially in rural areas, considerable hardship visited on people in circumstances where they look after an elderly parent and that person dies leaving two spinsters or two bachelors or more in what was the family home, such as a small farm. Notwithstanding the taxation provisions to which the Minister refers in terms of inheritance tax relief, when one of the siblings dies leaving the other in a position of hardship, these are relationships no one would regard as intimate, although they may be regarded as committed and they are certainly dependent. Will the Minister give a commitment that he will look at this by way of amending legislation separate to this Bill?
On section 170, and I agree with Deputy Howlin's remarks on the need for a high standard. It is important we do not create a situation where there are never-ending court applications testing the various criteria in the section. That is why I believe that adding "and committed" to "intimate" could well have unintended consequences.
There are circumstances where women in particular will not encounter any difficulty in satisfying the court that she is a cohabitant under the various tests. That may be undermined by a partner cohabitant who may well use this section to say however intimate their relationship might have been or whatever the degree of financial dependence there was, there was no commitment. The reason that could be put forward to undermine the commitment test could be an accusation on the part of a partner that the woman was in an affair for a period. It would be difficult to satisfy a court if a judge was of the view that a party to an unhappy differences case had been in an affair but at the same time one of the objective tests was that of commitment. It would undermine the whole basis of the section and add a degree of vulnerability that was not intended in the legislation as drafted.
Will the Minister clarify the issue as far as he can and introduce certainty? The broad and loose measure that will be attached to commitment does not sit well with certainty.
Deputy Flanagan makes his point eloquently from one standpoint. From another standpoint, are we saying that a couple who were on intimate terms but had zero commitment, for example, where both were having a string of affairs and there was little or no commitment, should come within the ambit of the legislation? That would be a bad result. Commitment is a very reasonable concept. This is not for people who simply happen to share a roof and perhaps a little bit more. It is for people who see and imagine themselves to be and are, for want of a better phrase, a couple, are an item on an ongoing basis and have a commitment. That is what it is about.
If they do, then they are unlikely to have recourse to the courts.
Unhappy differences may arise, just as in marital cases. Deputy Flanagan has a point but I also have a point and I believe the point of the Bill is best served by including committed couples.
Section 170(3) may need to be examined. It states: "For the avoidance of doubt a relationship does not cease to be an intimate relationship for the purpose of this section merely because it is no longer sexual in nature." I fear that a judge could use this to interpret the word "intimate" and come to the conclusion that if there had never been a sexual element to the relationship, then it was not intimate. Will the Minister and his officials examine this closely? If this is the intention, there should be a clause stating that for the avoidance of doubt, an intimate relationship does not necessarily have to be a sexual relationship. I am sure the Minister will see how this could be used by a judge to interpret the definition of "intimacy".
Based on what the Minister said, do I take it that redress is by one partner against the resources or estate of another and does not involve the State having to pay money? I wish to have clarity on the siblings situation and on the question of an intestate situation pertaining to rights of residency. On many occasions unfortunate old people find themselves in a situation where one of two brothers, two sisters or a brother and sister dies and the other is coerced into vacating the family home. There have been a few celebrated cases of this. The right of residency is key.
I listened with great interest to what Deputies Howlin, Flanagan and Mulcahy have said. I believe this section needs to bring more clarity to the situation. We have a duty as legislators to bring absolute clarity if it is within our capacity rather than have the courts interpret it, although judges have a duty to do so and the Supreme Court is the final arbiter. I suggest taking into account what colleagues have said and I respectfully request the Minister to examine rewording section 170 for Report Stage. I would change it to read "committed, intimate and trusted relationship". The problem is when trust breaks down, and this is where we find legal, financial and personal problems. If we included "committed" first, "intimate" second and then "trusted", we would make a greater contribution to enhancing the legislation we propose.
To follow the comments on siblings made by Deputies Treacy and Flanagan, will the Minister indicate if it is his intention, and I believe it should be, to look specifically at this area of the legislation? I accept this may not be the most appropriate place to deal with it but it is an issue that needs to be dealt with. We have all encountered cases where, because of disputes, the State has had to intervene and provide financial support to a sibling because of the way he or she was treated when an estate was divided up, even though he or she had been in a committed relationship over a long period. Will the Minister consider this in the context of introducing future legislation to provide basic protection for people in such circumstances in order that they are not undermined and exploited by another relative or family member? We all know of many cases where this has happened.
I welcome Deputy Sargent as a member of the committee. He replaces Deputy Connick. I was not able to do so at the beginning of the meeting because the order had not been passed in the Dáil. It has now and he is very welcome to the committee.
Gabhaim buíochas leis an Cathaoirleach.
The Deputy was only recently legitimised.
I did not realise I was legitimised. I thought I was simply on a learning curve as an observer. Now that I am a member, I feel entitled to speak. I thank the Chairman for his welcome.
I listened to what the Minister said and I am imagining a court situation where proof of intimacy becomes an issue of some distress among the various parties involved. Section 170(3) takes for granted a sexual relationship. The Minister stated that perhaps there would be a relationship that was never sexual but I would like clarity on whether one would find oneself having to deny or prove, as the case may be, that it ever was sexual because then we would start getting into a real quagmire. As Deputy Mulcahy said, an explanation that "intimate" does not necessarily mean sexual would draw a line in the sand. A history of sexual intimacy is implied by section 170(3).
I want to bring the Minister back to the essence of the amendment. I still believe, notwithstanding what he said, that the word "committed" will give rise to difficulty. Will the Minister allay my concerns on this matter? I will give another example which goes to the essence of the Bill and shows its practical manifestation. To qualify for relief, a couple who appear in court because differences have arisen must show to the satisfaction of the court that the partners are committed to each other, and that commitment will be of great importance under the Bill. If a party to the proceedings makes an accusation that, for example, the woman in the couple was in another relationship, it would blow apart the level of commitment. If it is not true, it would weaken her case but if it is true, it would leave her unable to benefit under the legislation, which would be fundamentally unfair. It could well preclude her from relief.
Applications for relief are sought before the court on the basis of abuse or violent activity and this would be part of the proceedings. The first test under this Bill would be whether the parties were committed as a couple. The judge would ask for a measurement of commitment and an accusation would be made that there was no commitment because the woman had had an affair. Even if it were true and for a very short period, it could fatally undermine her position and that may be unfair.
The more I have listened to the debate, the more I am convinced that having the word "committed" is necessary. Deputy Mulcahy amplified it in that there may be circumstances where people go in and out of an intimate relationship and are not committed to each other.
That is exaggerating the point that I made.
We are trying to give redress to couples who have a relationship together, both same-sex and opposite sex. We are trying to provide——
Yes, when it breaks down and there are financial dependants. We are trying to give some relief in the courts, potentially, to a man and a woman who are not married and have been living together for a number of years. If the relationship breaks down, one of them — more than likely it is the female — is left high and dry financially. It is to try to look after such a situation. We are not trying to deal with situations where people are not married or are coming in and out of a relationship with the same person over a considerable period. We are trying to capture the fact that they are, in effect, committed to each other. We are not saying that unfaithfulness is something that would——
It is a breach of commitment.
Again, if one examines the criteria that the court has to take into account as laid down in sections 170 and 171, one will note it refers to the application. Section 171(3)(j) states:
(3) In determining whether or not it is just and equitable to make an order in all the circumstances, the court shall have regard to ... (j) the conduct of each of the cohabitants, if the conduct is such that, in the opinion of the court, it would be unjust to disregard it.
The court has to take the conduct of the couple into account. Deputy Flanagan is reading far too much into the word "committed" in that he is trying to suggest that, in effect, it means faithful and constantly faithful. That is stretching the imagination a bit. I am not saying the Deputy is doing it on purpose but at the end of the day it is up to the court to determine, in each circumstance, based on the criteria laid down in the Bill, whether the application should succeed. That is a matter which should be left up to the judge.
The Oireachtas is trying to give some guidance as to what is in our minds in passing this Bill. If one leaves out the word "committed", one is potentially including only intimate relationships. When one examines the criteria we have laid out, how does one define an intimate relationship? I am taking into account the point about a relationship no longer being sexual in nature. One would include many more couples in this scheme than was intended.
We have not increased the time period from two years if there is a child. It is to try to protect non-married couples who are living together. They comprise 30%——
As husband and wife, but one cannot say that.
Exactly. That is why we have included the word "committed". To come to the point on siblings, the Deputy asked me to give a commitment. I am not sure what I have to give a commitment on because I am not sure what he is asking me to do. The Law Reform Commission and the Colley group examined this issue. The Colley group said there is very little research. It put it out for consultation and there were very few submissions of relevance for this category to the working group. It raised specific issues of concern regarding carers, pensions and employment law, while others favoured or opposed the inclusion of cohabiting relationships in a domestic partnership scheme. In the absence of research material and in view of the dearth of submissions made, the working group found it difficult to consider in any depth the nature of the diverse relationships in this category and the options for and consequences of according legal recognition.
The Law Reform Commission expressed the view in its consultation paper on the rights and duties of cohabitees. It said it was not possible to devise a single scheme for the determination of legal rights and duties that could operate fairly and evenly across a spectrum of relationships ranging from, on the one hand marriage-like relationships to familial platonic relationships on the other. The working group was of the same view as the Law Reform Commission. This Bill is not the place to address that. It may very well be that we should ask the Law Reform Commission to examine the issue of sibling relationships again now that we are dealing with the other issue.
The law is in place. They are well protected under taxation and succession law. I practised as a solicitor for many years. There are circumstances where siblings do not do anything about their situation. Often it is necessary to educate people in looking after their affairs and ensuring they are correct. It is not something I can give a commitment to examine because it has been examined up to this point. There is very little research. There may be a need to examine broader research.
Leaving in the phrase "and committed" is preferable because we are trying to exclude relatively casual cohabiting relationships. Quite clearly, a judge will not exclude a person from this scheme if there is an instance of unfaithfulness. If that is the case, a judge would not be able to give any redress to couples in such circumstances in divorce or separation proceedings.
I was with the Minister after his first reply. He lost me after the second reply but regained me after the last one. My understanding of this Bill from the beginning was that it was designed, from an examination of the Colley report and the Law Reform Commission report, to deal with conjugal relationships of same-sex couples who could not avail of marriage in the State because of our constitutional and legal prohibitions and to provide for a partnership arrangement that mirrors marriage in some respects. It would also enable opposite and same-sex cohabiting couples who do not want to enter a civil partnership or legal marriage to avail of redress in those circumstances.
The water has been muddied by interventions on Second and Committee Stages and in the public debate about a variety of other types of relationships which are not captured in the legislation. My understanding of intimacy meant some sort of sexual intimacy of a conjugal nature. Otherwise, one captures a broader scope of people. Siblings can be intimate. We should be clear about that. From my reading of section 170 in its totality, including subsection (3), I understood that intimacy meant sexual intimacy. It did not refer to it exclusively but it was included because we are discussing conjugal relationships in the totality of the people to be captured in this Bill.
People are talking around it as if we are going to capture siblings or best friends living together. It not only does damage to the underscoring of the importance of conjugal relationships but also gives a false expectation to people in some instances. I am happy with the last intervention of the Minister in which he made clear that, in accordance with the recommendations of the Colley report and the Law Reform Commission, what is at issue in all the sections of the Bill is to provide for a legal recognition of intimate, that is, conjugal, relationships among people of the opposite sex or of the same sex and, in varying degrees, to lay that down in law for the first time.
The amendment deals with the word "committed" but most of the debate dealt with the word "intimate". I found the Minister's argument in regard to commitment convincing. My colleague is a lawyer of some repute and experience and I would defer to his judgment on this that the inclusion of the word "commitment" might have unexpected consequences. I included it because I did not want there to be too high a hurdle in terms of people seeking redress from domestic violence. However, I understand that issue will be addressed separately, so most of my concerns have been addressed by the Minister. I would like the Minister to give me a clear statement on my general understanding of the nature of this legislation — that is, that it is to deal with conjugal relationships — and then I will be satisfied.
I would never intend to muddy the waters and I regret if Deputy Howlin regards what I said as the muddying of the waters in the debate. I agree with his point about siblings and accept what the Minister said. Indeed, the Minister said on Second Stage that this is a matter for a different debate but nevertheless, it is an important issue.
The Minister pointed to the fact that the Law Reform Commission and the Colley report said there was a dearth of research and written submissions. I accept that but there is a very good reason for it. Those engaged in such relationships and seeking redress are the most unlikely people to make submissions to the Law Reform Commission or the Colley report.
It is not sufficient for the Minister to say there is not enough research. On Second Stage, I asked that research be commissioned. It is not a big deal. Let us see the extent of the problem, which I believe is a big one in rural Ireland.
It is for another day but it entered the mix. Since it was a matter of debate, it should be dealt with, albeit on the side. I will withdraw my amendment.
I listened carefully to what the Minister said and will consider this further between now and Report Stage. However, I would not like a situation where, at the outset of legal proceedings, matters were weakened by something that is vague. If there is vagueness, there is uncertainty and uncertainty may well not be tolerated by the courts. That is a valid warning. We can come back to it on Report Stage and I thank the Minister for his reply.
I would not like to muddy the waters either because as legislators, we have a duty be clear, in so far as we can be, and to insert the best wording possible in legislation. The right of residency pertaining to siblings is probably extraneous to this but perhaps the Minister could clarify that the law is safe and solid in that area.
In regard to this section, I agree with colleagues that we have a duty to strengthen and clarify it. Will the Minister consider an amendment on Report Stage to include the word "trusted" before the word "relationship"? That would help.
I would be loath to include the word "trusted" because if one was to use that word in this context, the question would be raised as to whether one would use it in other legislation, including divorce legislation.
As regards including a requirement of trust in any relationship or relationships, in particular marital relationships, there must be trust all the time but they are also fraught with difficulties. If one was to include that, it would be a very high hurdle for any court to overcome, whether in regard to civil partners or opposite sex partners or in regard to husband and wife relationships. It would be very difficult for a court to determine whether it was a trusted circumstance.
Deputy Howlin referred to muddying the waters but there is no doubt that the issue of siblings came into this. This Bill was never intended to deal with that. It was intended to deal with the circumstances of same sex partners and opposite sex partners living together — a redress scheme for both of them and the issue of civil partnership for civil partners and the registration aspect of that. Perhaps we should get the Law Reform Commission to look again at that issue. That is a matter I can discuss with the Attorney General, who has a direct relationship with the Law Reform Commission in regard to its work programme. It has a substantial work programme and it made the point, as did the Colley report, that one could not devise a single scheme to deal with myriad relationships.
I refer to Deputy Howlin's point in regard to dealing with conjugal rights. That is a fact and is what this Bill is about. It is about civil partners and same sex partners. In subsection (3), the words "no longer sexual in nature" clearly indicate to the Judiciary, which will decide on the facts in each case, that there is an understanding that there has been at some stage a sexual nature to the relationship.
To come back to the general point, we looked closely at all sorts of words and what we could include in this. We believe the best words were "intimate" and "committed" and that we would give guidance in subsection (3) and in section 171 as to what could or could not be taken into account. It is not an exclusive list. I believe we have struck the right balance. Deputies may want to table an amendment on Report Stage but in the meantime, we can look at it ourselves. However, what we have there is correct and will stand the test of time.
Amendment, by leave, withdrawn.
Amendment No. 33 is related and an alternative to amendment No. 32. Amendments Nos. 32 and 33 will be discussed together.
I move amendment No. 32:
In page 86, subsection (2), lines 18 and 19, to delete all words from and including "In" in line 18 down to and including "court" in line 19 and substitute the following:
"Save in the case of any application taken under the Domestic Violence Act 1996,the court, in determining whether or not 2 adults are cohabitants,".
The Minister has dealt somewhat with the concern that brought about the tabling of the amendment in the first instance. It was a point made in the submission by Women's Aid to the effect that protection under the domestic violence code should not be dependent on previous cohabitation. I gather from what the Minister said that he has accepted the point somewhat and is willing to accept the fact the domestic violence legislation would be seen as somewhat separate in terms of such cases.
I would not like a situation to develop where this Act takes away some protection which might otherwise be there, in particular in the context of domestic violence.
The amendment I have tabled is different in form but has the same objective as Deputy Charles Flanagan's amendment. The Minister indicated that a later amendment proposes to delete section 203, which amends the Domestic Violence Act 1996 using the definition of cohabitee enshrined in this section. In deleting section 203, I assume he intends to give the cover of the aforementioned Act to cohabiting couples, whether of the same or opposite sex. Where and how is that to be done if the present Act is not going to carry the amendment?
My difficulty is not with protecting cohabiting couples under the 1996 Act but that the definition of cohabitation might be a hurdle too high for the courts to allow such protection. The Minister might indicate how cohabiting couples would be protected under that Act subsequent to the enactment of this Bill.
I have considered this issue very closely. Some time ago, Deputy Sargent raised issues in regard to domestic violence and barring, safety and protection orders.
The Attorney General has given advice on the issues pertaining to domestic violence and the relationship criteria for a person to obtain a safety or barring order. We were minded to accept the amendments proposed by Deputies Charles Flanagan and Howlin but after revisiting the matter we became concerned that serious unintended consequences could arise from the interaction between section 170 and the domestic violence provision in section 203. The Domestic Violence Act 1996 refers to a couple "living together as husband and wife". It does not specify that either or both parties must be over 18 years of age. Thus, where one of the couple is younger than 18 both parties are at present protected by the Act. The change contemplated in section 203 would remove the reference to "living together as husband and wife" and provide the relevant protection to cohabitants within the meaning of this Bill. However, cohabitants are, by definition, adults of full age, which means that a small number of couples would no longer be entitled to protection.
Changes to the 1996 Act remain necessary, particularly in order to grant same sex couples the same legal protection as those of the opposite sex. These changes are no longer appropriate to this Bill because the couples concerned may not always be cohabitants. I propose instead to make suitable amendments to the 1996 Act by means of the civil law (miscellaneous provisions) Bill, which is due for publication shortly. The Deputies opposite will be aware that we intended to enact this Bill before 24 June because it included the licensing provisions for the new convention centre. As the Opposition believed, probably correctly, that it contained too many provisions, we split the Bill and passed the aforementioned licensing provision separately. The remainder of the Bill will include the aforementioned amendments to the 1996 Act.
Against this background, I ask the Deputies not to press their amendments. I propose to withdraw my own amendment to section 203. I assure Deputies that in drafting the revised provisions of the civil law (miscellaneous provisions) Bill, I will be mindful of the issues raised by their amendments.
The new provisions will, of course, soon come before this committee for detailed examination and discussion. It is proposed to provide in the civil law (miscellaneous provisions) Bill a number measures on domestic violence. First, a person who lives with a respondent in an intimate and committed relationship and who is not related to the respondent within the prohibited degrees of relationship will be able to apply for a safety order. This will apply to opposite and same sex couples and a safety order will not specify a minimum cohabitation period. Second, a person who has a child in common with a respondent may also apply for a safety order. There will be no requirement that they are cohabiting or have ever cohabited. Third, a person who lives with a respondent in an intimate and committed relationship and who is not related to the respondent within the prohibited degrees of relationship will be able to apply for a barring order. This will apply to opposite and same sex couples. The applicant must have lived with the respondent for at least six months in aggregate out of the nine months immediately preceding the application. These changes will make it easier to apply for safety order because the current residency requirement will be removed. They will also allow a new category of applicant to obtain safety orders, namely, an applicant who has a child in common with the respondent, and will treat same and opposite sex couples equally in the consideration of safety and barring orders.
The Minister has gone a long way towards meeting my concerns and I thank him for his work in that regard. I am prepared to withdraw my amendment but if we do not have an opportunity to discuss section 203, I ask him to circulate his briefing note over the next couple of days so we do not have to wait for the Official Report.
I thank the Minister for addressing the issues we have raised. We will have another opportunity to examine the details of what is proposed in regard to amending the 1996 Act. I have one or two issues to raise but will await that discussion. In that context, I am happy to withdraw my amendments.
Under the new provisions, opposite and same sex couples will be treated the same in respect of safety and barring orders. Equally, the mother of a child who is not living with the father will be able apply for a safety order. This gives additional protection to children in circumstances where violent intent has to be proved.
Amendment, by leave, withdrawn.
Amendment No. 33 not moved.
I move amendment No. 34:
In page 86, subsection (2), lines 32 and 33, to delete paragraph (g).
This amendment deals with the criteria for qualified cohabitants. In the event of unhappy differences arising and cases being brought before a court, the judge will be asked to adjudicate on the criteria set out in section 170. I am concerned about the possible interpretation of the wording, "the degree to which the adults present themselves to others as a couple". We will have already established that their relationship was intimate and committed, notwithstanding my earlier concerns; the duration of the relationship; the basis on which the couple lived together, the degree of financial dependence; the nature of financial arrangements between the adults; whether there are more than one dependent child; and whether one of the adults cares for and supports the children of the other adult. We are not dealing with the degree to which the adults present themselves to others as a couple. Having gone through the earlier set of qualifying criteria, I am of the view this criterion is meaningless. It is filled with uncertainty and based entirely on subjectivity. I am concerned, however, that undue reliance will be placed on it by the Judiciary. As we all know, judges may have vastly different ideas as to who may be considered a cohabitant. If they examine section 170, as I am sure they will be urged to do by counsel on both sides of the argument, I am afraid they could come a cropper under paragraph (g). There are sufficient criteria already expressed to pass the test of cohabitation and I am concerned this criterion will give rise to a significant level of inconsistency. I wonder why it is necessary.
It would not be for counsel to exhort judges to examine this criterion. While judges are mandated to consider these criteria in arriving at a determination, the criteria are not exclusive. We have carefully drafted them to ensure the court will consider all the circumstances of the relationship. The absence of any given factor will not, on its own, prevent the court from deciding that a couple are cohabitants within the meaning of the Bill. Other factors listed include whether the couple have dependent children and whether one of them supports or cares for the children of the other. The absence of children, for example, does not mean a given couple cannot be cohabitants.
It is important that the court be given guidance on the factors which indicate that a couple are cohabitants and not simply individuals who share a flat or house. Whether two people present themselves to others as a couple is a relevant factor in the event that questions are raised as to the nature of their relationship. The public reputation of the relationship is clearly relevant and a factor the court should consider in determining whether two people are cohabitants for the purpose of the Bill. Taking everything into account, it is important to retain this criterion for the purpose of giving the courts some guidance.
Does the Minister not accept that judges will be heavily influenced by this criterion and will use these factors as evidence as to whether couples qualify for redress under the scheme? These criteria will be used as determining factors as to what is expected of a committed cohabiting relationship. On paragraph (g), “the degree to which adults present themselves to others as a couple”, will evidence be brought in from the street to say such and such a couple had been in the local pub together on occasion? Is that the type of evidence that will be expected if a couple is to qualify if paragraph (g) is a determining factor? If it is not a determining factor, why include it?
No, it is not a determining factor. If it were——
In that case, is it an influencing factor?
Paragraph (e), “whether there are one or more children”, is a determining factor.
It is a statement of fact.
Yes, but one cannot state a couple is not cohabiting because they have no children.
One would take account of the other factors.
They are not exclusive and the judge will take them into account. While judges may completely ignore them, they are relevant in determining whether the persons are in an intimate and committed relationship. This is what the court must decide. It would be stupid and ludicrous to suggest one would bring in friends to say they had seen the couple in a pub drinking together. The evidence in this respect would be derived from the questioning — if it was a contentious issue — by the judge and counsel for the other side. On the criterion as to how a couple present themselves, questions could include whether they had opened joint bank accounts. One would ask these types of questions rather than bringing in people off the street to state they saw the couple having a cup of coffee together.
The issue of joint bank accounts can be dealt with under paragraph (c), the degree of financial dependence of each adult and any agreements in respect of their finances. That matter is addressed elsewhere.
The question is how the couple present themselves in public. Do they present themselves as a couple or as completely separate? That is relevant.
The Deputy is nit picking.
I will withdraw my amendment and re-examine the issue. I believe it will give rise to interminable legal argument and confusion.
Amendment, by leave, withdrawn.
I move amendment No. 34a:
In page 87, subsection (5)(b), line 8, to delete “3 years” and substitute “5 years”.
The amendment increases from three to five years the length of time for which a couple must cohabit to become qualified cohabitants under the redress scheme. I consider that there is merit in requiring a longer period of cohabitation before the redress scheme takes effect. This is not because I believe a three-year relationship is insignificant but because the possible consequences are significant and the duration of the relationship should be correspondingly more substantial.
The proposed change also reduces the scope for non-meritorial or vexatious claims to the court. The longer period better addresses the need to balance the public policy objective of protecting financially dependent cohabitants with the private autonomy of couples who may have no intention or wish to be subject to a legal obligation of mutual financial support at the end of their relationship.
I have not proposed any change to the two-year threshold for a couple with a child since having a child clearly changes the nature of the relationship and brings additional responsibility and dependency. The protection of the redress scheme should become available in these circumstances at an earlier time in the event of the ending of a cohabiting relationship.
I thank the Minister for his amendment, which is an application of common sense. It is important to ensure the laws we make in this matter are workable.
We all received submissions on the duration of the relationship. I received an interesting submission from the Irish Farmers Association which may have been brought to the Minister's attention. It makes three points on the issue of cohabiting couples. It states, in the first instance, that there has not been any great public debate on this issue or any great public demand for the proposed measure. It refers to the imposition of legal liabilities on persons without their consent and the degree to which couples will be burdened with legal costs and legal proceedings, particularly in areas where definitions are less than certain.
I am not sure if the Minister formally replied to the submission. I had a lengthy meeting with representatives of the IFA. What are the Minister's observations on the three major points made in its submission? It may have had an important role in the Minister becoming minded to extend the timeframe from three to five years. This is a more workable period and the amendment is to be acknowledged as important. This is more workable and should be acknowledged as important.
I also welcome the amendment. I confess that I did not baulk at the three year duration rule when I read the Bill on publication. I have tabled no amendment on this section, but like other Members, I have received detailed submissions from the Irish Farmers Association and other organisations whose members seem not to be aware that this was part of the Bill. The cohabitation issue has been part of the debate since the publication of the Law Reform Commission report and the Colley report, and it was also part of the general debate on two Bills I introduced on civil unions. It has been discussed for a long time, and there has been a consensus that even when opposite sex couples chose not to avail themselves of the institution of marriage, where formal rights and responsibilities would accrue, there must still be some rights that accrue to a long-term cohabiting couple. That has been the consensus across party lines over a number of years.
It is reasonable to suggest that three years was probably too short a timespan for significant rights to accrue to an individual, and five years is more appropriate. I agree with the Minister that where children are involved, then a different reality comes into play. For that reason, I welcome the non-amendment of subsection 5(a), but I support the extension from three to five years for the period of time a couple have to spend cohabiting before rights under this section accrue to them.
I fully concur with colleagues on the changes being brought about by the Minister. I have received submissions from the IFA and others as well, so perhaps the Minister might like to give us an indication of what thinks about that submission from the IFA in particular.
I would appreciate clarification from the Minister on his response to the IFA's concerns. Will the amendment to the Domestic Violence Act 1996 address some of the issues that I raised earlier, rather than dealing with them in this context? Domestic violence was the motivation for my decision to raise the issue with the Minister about the lack of a difference between whether a couple was married or not married when it came to an ongoing threat of domestic violence. In other words, the number of years was not the issue in domestic violence, but it is an issue here. Will this be separated from what we are talking about here, by virtue of the new Bill?
We are looking at a number of issues in respect of the miscellaneous provisions Bill, but it is a complex area. The Deputy made the point previously to me, as he just said.
I thank the Deputies for their support. The Law Reform Commission proposed three years, and two years for children. I listened to representations from outside agencies, from my own parliamentary party and from other political parties. I felt that an intimate and committed relationship of five years was better in order to ensure that serious consequences would not arise which were not intended when the couple came together.
We are not giving people rights to anything. It is a right to a redress scheme. There has been a little bit of misunderstanding about this. We are not giving a statutory right to one third or two thirds of the estate, as provided under the Succession Act. It is a right to apply to the court to convince that court that there is financial dependency and that based on the criteria laid down in the legislation, the financially dependent person in that relationship is entitled to something. If there is a situation where a spouse, having lived in a house and on a farm and has contributed over five years — two years if there are children — then in fairness, there has to be a possibility for some provision to be made for that person, rather than leaving the person destitute.
On the instruction of the Government in 2000, the Attorney General requested the Law Reform Commission to look at this area. Therefore, the issue has been debated and there have been many reports on this in the intervening period. I believe there is a demand for it. As somebody who has practised as a solicitor for many years and as a public representative, I know there are many cases of unmarried heterosexual couples who have split up and in which one of the partners has been left high and dry, with no recourse to court. This is about setting up a circumstance where a person can go to court and convince a judge that he or she is entitled to redress.
In my experience as a solicitor, there was always an understanding when it came to violent relationships that if the State did not take care of one spouse, then the other spouse had to do so. The law has tightened up in that respect in the intervening years. There is a necessity for it and it is not a statutory right to part of anyone's estate or property. It is a right to go to court and we are creating the framework for people to go to court so that the court can determine if there is a possibility for redress.
The IFA representatives were looking for an opt-in rather than an opt-out. I would have thought that it is more preferable for a couple who wanted to opt out of this scheme to make their own arrangements. An opt-in scheme, where it is only available to couples if they purposely opt in to it, would be unconstitutional, according to the Attorney General. In addition, it would not capture the vulnerable partner, who is unlikely to have opted in in the first place. Regarding opting in or opting out, the law will allow couples the right to apply. It is not a statutory right to part of an estate. That is there. If they want to opt out either at the start when they come together or during their relationship, that is their business. I believe we have dealt fairly with any suggestion that outside groups have made suggesting that three years was slightly too short. Some people suggested seven years. I believe that would be somewhat onerous and might be unfair on a partner who is in effect left destitute. Regarding the five-year provision, they need to prove they are financially dependent, which is a reasonably high threshold under the legislation.
Amendment agreed to.
I move amendment No. 35:
In page 87, lines 9 to 17, to delete subsection (6).
I do not see any compelling reason for the restriction in subsection (6) on the rights or cohabiting persons who were formerly married. The subsection refers to "one or both of the adults is or was, at any time during the relationship concerned, an adult who was married to someone else". Marriages often break up because people have a new intimate relationship which might continue for many years — at least five years. The person's previous marriage becomes a barrier to that person availing of the redress scheme. There is no reason for that and I suggest it be deleted.
I am not sure if it adds anything to the legislation. I would like the Minister to explain the reason for the inclusion of subsection (6)
Section 170(6) was drafted to ensure that a spouse is not disadvantaged in seeking various ancillary orders on separation or divorce if the other spouse became a qualified cohabitant of a third party who seeks redress under the Bill. The provision ensures that the cohabiting spouse cannot become a qualified cohabitant until the spouses have been living apart for at least four of the previous five years. The time period was carefully chosen to coincide with the qualifying period for divorce. The subsection is carefully drafted on the advice of the Attorney General to ensure that the constitutional protection for marriage is fully vindicated. I have discussed the matter at length with the Attorney General. At every twist and turn in this legislation we needed to be careful to ensure that this does not cut across the protection of marriage in the Constitution. It is for that reason that we are giving this, in effect, protection to a married spouse in the event of him or her having a connection with a qualified cohabitant.
I am at a loss to understand. That is Jesuitical in terms of protection of marriage. Needing to protect marriage after it has ended seems to be taking the Constitution a step too far. It is possible to protect the interests of a spouse of a former marriage without disadvantaging — probably — a woman in a new relationship that breaks up. It is not necessary, if one likes, to do damage to one in order to protect the other. I ask the Minister to reconsider this unnecessary subsection. While I am not a constitutional lawyer I do not believe it would in any way do damage to the constitutional provision on marriage to suggest that, when a marriage has failed and is dissolved in accordance with the Constitution as determined by the people in a referendum that provides for the dissolution of marriage, the rights of a partner in such a dissolved marriage are such that they would disadvantage another partner regarding the rights that might accrue to simply seek redress from a court if a long-term cohabitation fails. There is no compelling case for that.
There is a problem here. I agree with this legislation. I acknowledge the work the Minister and his predecessors have done. I also acknowledge the work of Deputy Howlin in introducing at least two Private Members' Bills in recent years. We need to see around the obvious corner, which is how a scheme of redress offering a measure of protection for vulnerable parties will work in practice. I see a problem in this section. Deputy Howlin rightly pointed out that this provision is unduly restrictive. I note that this provision was not in the heads of the Bill published in 2007 and obviously has arisen in more recent times. I shall give a practical example of a potential injustice. A husband and wife separate on 1 January 2010. On 1 March 2011 the man meets a new partner. On 1 September 2011 the man and his new partner commence living together permanently in a committed relationship.
And intimate, indeed. In February 2013 the man and his new partner have a child. The couple decide the mother should give up work and look after the baby. In December 2013 the man leaves his new partner. Although she is a qualified cohabitant because she has been living with her new partner for two years and has a child, she is not a qualified cohabitant on the basis that the man has not lived apart from his former wife for the requisite four-year period. There is an injustice not only to the dependent cohabitant but also to the child of the cohabitant.
Looking at section 170 overall and without retracing anything we mentioned earlier, I question the certainty in all this. Owing to uncertainty and in this case because matters are too restrictive, an injustice can be perpetrated along the lines of the example I have given.
I have listened with interest to what has been said by colleagues and have also listened to what the Minister has said. It behoves us as elected legislators to ensure that we uphold the sanctity of marriage — the constitutional and legal position that exists. The Minister is consistent in doing that.
The sanctity of a dead marriage.
It is not a dead marriage.
Deputy Flanagan is suggesting that one can have an ad hoc situation.
Allow Deputy Treacy to finish.
That is what the Deputy is saying. The Minister is very consistent. We cannot create laws that allow for this opt-in, opt-out ad hoc situation without a certain period of time elapsing to ensure that the courts, partners, law and those affected, including the children, are all covered in a very conclusive way after a period of time. Otherwise we might as well not be legislating at all.
Is the Deputy suggesting that the children, in the example Deputy Flanagan mentioned, should be thrown to the wolves?
The responsibility in this case rests with the persons who took the decision, of which the law will then take account after a period of time.
The children in the circumstances outlined by Deputy Flanagan are not disadvantaged in that existing legislation provides for a duty of maintenance on the father of the child. Deputy Howlin's points relate to a marriage which has ended. This provision seeks to ensure that the spouse, in applying for divorce and ancillary orders, is not disadvantaged over the other spouse if he or she has become a qualified cohabitant of a third party. The purpose of this subsection is to ensure priority for the spouse, which is as it should be and has to be in the context of the constitutional requirement to protect marriage. If the cohabiting relationship breaks up prior to the minimum period of living apart as required in respect of divorce there is no question of the other spouse being placed at a disadvantage by the prior claim being made by a qualified cohabitant. The Deputy is correct in saying this was not included in the original heads but in the discussion on this section. The Attorney General believes that this level of additional protection is indispensable to vindicate the constitutional protection of marriage.
It perpetrates an inequality.
It is not clear. The bottom line is that we have enshrined in the divorce legislation a four-year separation period. The problem to be addressed in this section has nothing to do with marriage. The marriage will end when the proper time has elapsed and the courts determine that the marriage has ended. The question is when the clock starts in the context of the next relationship. It is not conscionable that if, de facto, a year after a person’s marriage has ended, often by mutual agreement with both parties in loving second relationships which for some reason break down after three or four years, the clock does not commence ticking until four years after separation from the first marriage has lapsed. It is fine to talk in general terms but we are in this regard speaking about people, families and individuals. We are not legislating morality; we are legislating practical reality.
I do not understand the reason we cannot protect both, probably women, in this instance by not disadvantaging the spouse who wishes to claim maintenance following a valid legal marriage, the husband of which then becomes involved in another intimate long-term relationship. Why do we, in order to protect the first woman, need to disadvantage the second woman? Why can we not protect both by simply allowing the clock to commence ticking from the time the cohabitation begins even if it is within the four year period of separation required before the previous marriage can be formally dissolved by the courts? It will be largely women in this instance because obviously same sex couples cannot be married and in most opposite sex marriages it is the woman who is the dependant where there is an application for redress as provided for in section 170. Perhaps the Minister will undertake to reflect upon this and to examine, through consultation with the Attorney General, whether there exists a formulation whereby both women can be protected in this regard.
There will be real people caught up in this, namely, persons who have been living with a partner who was formerly married, who will not have rights. All of this is subject to determination by the courts. The criteria in terms of financial dependance and ability to pay and so on will remain to be met by the court. As the Minister has rightly and properly repeatedly stated, there is no automatic right in this regard. I ask that the Minister reflect further on this issue to ensure we do not at the end of this process disadvantage women who have been cohabiting. We all know of people who got married and then returned to earlier relationships which they believed might work out but did not. People often give up their financial independence in an effort to make a relationship work and after years of it not working they are left high and dry. We should try, if we can, to meet this requirement.
The issue here is one of equality and the manner in which the law respects or fails to respect two women, as mentioned by Deputy Howlin. If, for example, as mentioned by Deputy Howlin, there are two women in unequal positions and the man concerned in these circumstances dies, we are then inviting a constitutional challenge by treating two cohabitants in different ways, dependant solely on the marital status, the marital status having been essentially dissolved. I believe there is an issue of equality involved and that the Minister should undertake to re-examine this between now and Report Stage. This is an issue of some importance.
We must as legislators be consistent. We cannot have one law which provides for a four-year period of separation and another which provides for a much lesser period. I have the utmost regard for all colleagues here but on the points made by Deputies Howlin and Flanagan, two years cannot be regarded as a long time. The Minister, in terms of what he is proposing, has been absolutely consistent in ensuring the four-year rule in regard to the constitutional provision of marriage, taking into account the divorce law which exists. We too must be consistent as legislators. I do not believe it would be wise for us to legislate for any lower period.
While I will undertake to examine this again between now and Report Stage, I assure Deputies I do not believe the advice from the Attorney General will be any different. The point at issue here is that a spouse not be disadvantaged by a prior claim of a qualified cohabitant in circumstances where the period laid down under the divorce legislation has expired. This is not about equality alone but about balance in our Constitution, namely, on the one hand the protection of marriage and on the other the issue of equality. The Attorney General has advised that the imperative in this legislation is first to ensure it is passed and second that it is constitutional. His advice is that if we do not provide for situations where the special protection of marriage is guaranteed this will fall foul of a constitutional challenge, be it by reference to an Article 26 referral or a challenge. The Attorney General has examined this legislation intensely, in particular this area, in the context of ensuring a spouse of a former marriage is not disadvantaged as a result of a potential claim made prior to expiration of the qualified period by a qualified cohabitant. I can say no more than that. I will look at it again but I cannot guarantee the view will be any different.
I will not be dismissive of what the Minister has said but this is an important and serious matter. I ask that the Minister to let me have a detailed note, in so far as he can, on the Attorney General's advice between now and Report Stage. I will not ask him to publish the advice because I know he will not do so. This is an important issue. I would appreciate a detailed note on this, informing me of the Attorney General's advice, in as much as the Minister can do so, and then we can examine the matter on Report Stage. Notwithstanding what the Minister said, there is an issue of inequality in this section in that two cohabitants are being treated differently and one of them is being placed in a position of possibly being seriously advantaged.
This only applies to situations where there is a child because we have already made the amendment.
I share the concern expressed. I can envisage circumstances where people would be badly disadvantaged in this respect. I would like to see the advice of the Attorney General. It is too rigid an interpretation of the constitutional protection of marriage — when a marriage is in the process of dissolution and will be dissolved — that there would be a need to disadvantage a woman in a new relationship. We will return to this matter on Report Stage and if we got the advice of the Attorney General in writing, it might clarify matters for us.
How stands the amendment?
Amendment, by leave, withdrawn.
Question proposed: "That section 170, as amended, stand part of the Bill."
Perhaps the Minister might let us have a copy of the note on subsection (6) and on subsection (1) on the aspect pertaining to an intimate and committed relationship.
Question put and agreed to.
I move amendment No. 36:
In page 87, subsection (3), lines 37 to 39, to delete paragraph (e).
This amendment relates to a point similar to that which I have made earlier regarding the measuring of this matter. I believe the provision in paragraph (e) is superfluous and it could give rise to uncertainty and have consequences that might well disadvantage people.
Amendment No. 36 would remove one of the factors mentioned in section 171, namely, the duration of the parties' relationship, the basis upon which the parties entered the relationship and the degree of commitment of the parties to one another. These are factors for consideration by the court. They are clearly relevant matters in determining whether it is just and equitable to make an order granting financial support to a dependent cohabitant at the end of a relationship.
A cohabiting relationship of three years entered into casually is clearly materially substantially different from a relationship of 30 years where the couple shared income and threshold expense and dedicated time and effort to sustain a relationship. These are relevant matters which will vary from case to case.
The court must expressly be mandated to consider these factors along with the long list in 171(3), the other factors, in deciding whether to make an order for redress.
The Minister is showing form in that if he did not agree with me on the earlier definition of commitment, he will not agree with me on this one. As in the case of the previous amendment, I will withdraw this amendment, consider the Minister's response and perhaps return to this matter at a later stage.
Amendment, by leave, withdrawn.
Amendment No. 37 is related to amendment No. 36(a) and therefore amendments Nos. 36(a) and 37 will be discussed together.
I move amendment No. 36(a):
In page 88, between lines 33 and 34, to insert the following subsections:
"(7) Where the court makes an order under section 172, 173(1)(c) or 185 in favour of a qualified cohabitant, the court may, in the same proceedings or at any later date, on the application of either of the qualified cohabitants concerned, order that either or both of them shall not, on the death of the other, be entitled to apply for an order under section 192.
(8) If the order under section 172, 173(1)(c) or 185 referred to in subsection (7) has been made but not yet executed at the time that the order is made under subsection (7), the order under subsection (7) shall not take effect until the execution of that other order.”.
This amendment proposes the insertion of a new subsection (7) which allows the court to make a blocking order where it is made an order for lump sum payments, or makes a pension adjustment order or a property adjustment order. A blocking order would prevent a person making an application at a future time for provision from the estate of a former cohabitant who has died. The amendment does not, however, allow the court to make a blocking order where the only order it has made is for periodical maintenance payments. The logic behind this is simple. Where a maintenance payment is ordered, the court has decided that the qualified cohabitant is financially dependent. However, the maintenance order dies with the maintenance debtor. This means that the maintenance creditor should still be allowed to apply for provision from the estate of the deceased because he or she may well still be financially dependent. To allow a blocking order in these circumstances would frustrate the intention of the redress scheme, which is to protect the financially dependent cohabitant.
Amendment 36(a) proposes a new subsection (8), which further provides that where a blocking order is made, it does not take effect until the execution of the lump sum order, or the pension adjustment order or the property adjustment order. It can be very difficult to enforce orders after the death of a person at whom they are directed. Rules of court allow a certain discretion in the matter but there is no certainty that the order can be executed. Thus, the proposed subsection (8) specifies that the blocking order takes effect only after the prior order is executed.
Deputy Flanagan's amendment No. 37 is similar to my amendment 36(a) in that it would allow a qualified cohabitant to seek a blocking order from the court so that in the event of the qualified cohabitant’s death, the other qualified cohabitant cannot apply for such provision. I accept that there should be limited circumstances in which a qualified cohabitant should be able to apply for provision from the estate of a deceased cohabitant, in particular, a qualified cohabitant’s potential obligations to the other qualified cohabitant should not be absolutely open-ended. However, we should be very clear that the rights provided to qualified cohabitants to apply for the orders are safety net provisions to mitigate hardship. Accordingly, allowing a qualified cohabitant to obtain a blocking order may have the effect of frustrating the intent of the redress scheme. If the qualified cohabitant has obtained a maintenance order against the other qualified cohabitant under section 171, we should consider whether that person should still be able to apply for provision from the estate of the deceased cohabitant at a future date.
I have examined the issue with the Attorney General and amendment No. 36(a) takes on board the issue raised by Deputy Flanagan while ensuring that a blocking order does not give rise to unintended effects such as preventing a qualified cohabitant who is still financially dependent from applying for provision from the estate of the deceased or leaving such a cohabitant with no recourse if the order made for his or her benefit has not been executed at the time of the other cohabitant’s death.
I welcome the Minister's response. I accept his amendment and I will withdraw my amendment. It is important that this amendment be read in conjunction with section 192 and in particular with section 199(3).
Some have suggested that a cohabitants' agreement cannot exclude succession rights on the basis that section 199(3) does not refer to section 192. The Minister's amendment has addressed the concern in this respect. If needs be, I will return to this matter on Report Stage. I thank the Minister for considering the matter in the manner in which he did.
Amendment agreed to.
Amendment No. 37 not moved.
Section 171, as amended, agreed to.
Section 172 to 191, inclusive, agreed to.
I move amendment No. 38:
In page 101, subsection (1), line 7, to delete "6" and substitute "12".
Deputies will be aware that a spouse has 12 months from the grant of representation to assert his or her rights but a cohabitant has only six months. A challenge to an estate could be under way from a cohabitant without knowing the position in regard to the spouse and this would place a legal person or representative in a difficult position. Therefore, I would be anxious that 12 months should become the standard. Why should it be different for different classes of relationship? It is an administrative matter and is one of equality and of ensuring the same regulations apply for cohabitants, civil partners, same-sex couples and married couples. It is not a big issue but in terms of administration, procedure and practice——
Is the Deputy trying to suggest the 12 months is the same period as in the Succession Act? To the best of my knowledge, I believe he is thinking of another issue in the Succession Act. Perhaps he might look at it again.
The amendment would allow an application for provision from the net estate of another cohabitant and would allow such an application to be made up to 12 months after representation is granted under the Succession Act. This would give a qualifying cohabitant a longer period to apply for provision from the estate of the deceased cohabitant than the six months a former spouse has under current law, or a former civil partner has under section 125(1) of the Bill. This could delay unduly the administration of estates and distribution of bequests to beneficiaries. The Deputy may be thinking of another provision in the Succession Act.
I am anxious to ensure there is a standard.
To my mind there is no requirement on a legal person or representative to notify a cohabitant of his or her potential rights. I do not contend there should be but there is an obligation on the legal person or representative to notify spouses and civil partners and they get a longer window of opportunity in which to assert their rights. I would not intend to give a longer window of opportunity to civil partners or cohabitants but am anxious that matters be standardised. Will the Minister look at this and perhaps drop me a note?
We may correspond with the Deputy but section 125(1) states that a civil partner may, after the death of his or her civil partner but not more than six months after representation is first granted under the Succession Act in respect of that civil partner, apply for an order under the section for provision out of the net estate. We are giving the same provision.
If that is the case I shall withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 38a and 40 are related and may be discussed together.
I move amendment No. 38a:
In page 101, between lines 10 and 11, to insert the following subsection:
"(2) Notwithstanding subsection (1), a qualified cohabitant shall not apply for an order under this section where the relationship concerned ended 2 years or more before the death of the deceased, unless the applicant-
(a) was in receipt of periodical payments from the deceased, whether under an order made under section 173 or pursuant to a cohabitants’ agreement or otherwise,
(b) had, not later than 2 years after that relationship ended, made an application for an order under section 172, 173 or 185 and either—
(i) the proceedings were pending at the time of the death, or
(ii) any such order made by the court had not yet been executed,
(c) had, not later than 2 years after the relationship ended, made an application for an order under section 172, 173 or 185, the order was made, an application under section 171(6) was subsequently made in respect of that order and either—
(i) the proceedings in respect of that application were pending at the time of the death, or
(ii) any such order made by the court under section 171(6) in favour of the qualified cohabitant who is the applicant under this section had not yet been executed.”.
This amendment limits the time period for applying for provision of an estate of a deceased former qualified cohabitant. It allows a qualified cohabitant to apply for such provision only where the couple are cohabitants within the period of two years before the date of death of the deceased unless, under the new subsection (2) (a), the applicant qualified cohabitant was receiving maintenance payments from the deceased, or, under the new subsection (2)(b), the applicant qualified cohabitant had applied within the appropriate time limits for maintenance, pension adjustment order or property adjustment order and the case has not been heard or the order has not been executed at the time of death, or, under the new subsection (2)(c), the applicant qualified cohabitant has applied for a variation or a maintenance order or pension adjustment order or property adjustment order and the case has not been heard or the order has not been executed at the time of death.
This modification is intended to preserve the principle of the redress scheme by protecting the financially dependent qualified cohabitant on an ongoing basis. At the same time, it provides reasonable certainty to other former cohabitants that their estates cannot be sued on their deaths by someone with whom they have had a relationship in the distant past and to whom they have no current obligations.
Amendment No. 40, proposed by Deputy Flanagan, is related to my amendment No. 38a in that it would limit the ability to apply for provision from the estate of a deceased qualified cohabitant to a person who has been a qualified cohabitant of the deceased within two years of the day of death. Again, I have accepted the general principle of this amendment in my amendment, subject to the modification to allow a former cohabitant who remains financially dependent and who is in receipt of, or has applied for orders under, the redress scheme to apply for provision from the estate of the former cohabitant.
I accept what the Minister said. By and large he has met what I tried to do in amendment No. 40. It is important that there be consistency between the applicants. This issue would have arisen in the context of the drafting of wills and the provision of advice in regard to potential beneficiaries, especially where there may be more than one qualified cohabitant applicant. I shall not move my amendment.
Amendment agreed to.
I move amendment No. 38b:
In page 102, lines 10 and 11, to delete "under section 192, shall” and substitute “under sections 171(6) and 192, shall”.
This is a technical correction to subsection (3) (a) of section 192. The subsection specifies matters the court may consider in deciding whether to make an order for provision from the estate of the deceased qualified cohabitant. This includes a prior order for redress but the Bill, as published, does not explicitly include any variation, suspension, revival or discharge of the redress order under section 171(6) as matters for consideration by the court. The amendment inserts section 171(6) so that these are included in the factors a court may consider clearly relevant factors, where a former qualified cohabitant applies for provision from the estate.
Amendment agreed to.
Imove amendment No. 39:
In page 101, subsection (3)(d), line 26, after “section 171(3)” to insert “and section 170(2)”.
I made the same point earlier about different classes of relationships and different times. I argue for an element of administrative consistency to be introduced.
My advice is that this is not necessary or appropriate in order to determine whether the application may be made in the first place. The court will already have had to decide whether the couple are cohabitants. To make that decision it will be required to consider the factors in section 170(2). These factors attest to whether the couple are cohabitants whereas in making financial or property orders the relevant set of factors for consideration by the court are those set out in section 171(3) which deal extensively with financial and property matters.
The Minister is being consistent.
Amendment, by leave, withdrawn.
I move amendment No. 39a:
In page 101, between lines 26 and 27, to insert the following subsection:
"(4) The court shall not make an order under this section where the relationship concerned ended before the death of the deceased and—
(a) the court is not satisfied that the applicant is financially dependent on the deceased within the meaning of section 171(2), or
(b) the applicant has married or registered in a civil partnership, or in a legal relationship of a class that is the subject of an order under section 5.”.
The effect of the amendment is that where qualified cohabitants have broken up prior to the death of one of them, the court may order provision from the estate of the deceased for the surviving cohabitant only if the surviving cohabitant was financially dependent on the deceased at the time of death and has not married or registered in a civil partnership. This amendment addresses the qualitative difference between qualified cohabitants whose relationship was ended by death and those whose relationship ended by break-up. The court must consider the financial dependency criterion and whether the survivor is in a legal relationship only where the relationship with the deceased ended prior to the death. If the relationship was ongoing at the time of death the financial dependency criterion does not apply.
However, the range of limitations of a cohabitant's claim to a share in the estate remain. These are as follows: the court must consider whether any provision has been made for the applicant under any bequest of a will; the interests of the beneficiary to the estate and the factors set in section 171(3), the total value of any provision ordered may not exceed the share to which the applicant would be entitled as a legal right share or under the rules of distribution on intestacy had the couple been married or been civil partners to each other; an order must not affect the legal right of any spouse of the deceased; and provision can be made only from the net estate, meaning the estate after settlement of priority rights, legal rights and prior rights, if any, of any spouse or civil partner of the deceased.
I accept the Minister's comments. His amendment overlaps with some of the issues in amendment No. 40, which I will withdraw. I am pleased to accept what the Minister has said.
With regard to section 5, are foreign relationships being referred to?
Amendment agreed to.
Section 192, as amended, agreed to.
I move amendment No. 39b:
In page 102, lines 10 and 11, to delete "under section 192, shall” and substitute “under sections 171(6) and 192, shall”.
Section 193 requires that application for redress under Part 15 be made within two years of the end of the relationship, except for applications under section 192, which are separately dealt with in the section. We have already discussed that.
Amendment agreed to.
Amendment No. 40 not moved.
Section 193, as amended, agreed to.
Sections 194 to 198, inclusive, agreed to.
Amendment No. 41 is a related alternative of No. 40a and the amendments will be discussed together.
I move amendment No. 40a:
In page 103, subsection (3), line 21, to delete "section 171.” and substitute the following:
"section 171, or an order for provision from the estate of his or her cohabitant under section 192.”.
This has the effect of allowing cohabitants to specify in an agreement made in accordance with section 199 that neither may apply for provision from the estate of the other in the event of the other's death. This amendment was inspired by Deputy Flanagan's amendment No. 41 and has been drafted so as to more clearly explain the purpose of the subsection. I thank Deputy Flanagan for raising the matter.
I accept that. It would have been easier to just accept my amendment but the Minister would never do that.
It is an important issue and I thank the Minister.
The next time the Deputy makes an amendment he should omit the reference "and/or".
It is not legal language.
It is frowned upon by the Parliamentary Counsel.
Amendment agreed to.
Amendment No. 41 cannot be moved.
Amendment No. 41 not moved.
I move amendment No. 42:
In page 103, subsection (4), line 23, after "circumstances" to insert the following:
"insofar as it affects cohabitants rights under section 171”.
This is the same point as it relates to section 171.
We have already dealt with this.
Amendment, by leave, withdrawn.
Section 199, as amended, agreed to.
Sections 200 to 202, inclusive, agreed to.
There is a vote in the Dáil but we could proceed quickly.
Amendment No. 43 not moved.
Question, "That section 203 be deleted," put and agreed to.
Sections 204 to 206, inclusive, agreed to.
Amendments Nos. 44 and 45 in the name of the Minister are related and may be discussed together.
I move amendment No. 44:
In page 116, third column, line 18, to delete "section 46(2),".
Section 46(2) of the Health Act 1970 was amended by section 3 of the Health (Amendment) Act 1991 and no longer contains a specific reference to a spouse. Accordingly, amendment No. 44 simply removes a redundant reference in the Schedule.
There is a vote in the Dáil.
Amendment agreed to.
I move amendment No. 45:
In page 116, third column, lines 25 to 31, to delete "section 59(2) (inserted by section 1 of the Health (Miscellaneous Provisions Act 2001)" and substitute the following:
"section 1(1)(b) of the Health (Miscellaneous Provisions) Act 2001.
Amendment agreed to.
Schedule, as amended, agreed to.
Title agreed to.
Bill reported with amendments.